When DNA Evidence Suggests ‘Innocent,’ Some Prosecutors Cling to ‘Maybe’

Terrill Swift spent years in prison for the rape and murder of a prostitute. Now DNA evidence casts suspicion on another man.Credit
Sally Ryan for The New York Times

CHICAGO — For 17 years, Terrill Swift and three other men convicted in the 1994 rape and strangulation of a prostitute here have insisted on their innocence. And last May, a powerful new piece of evidence emerged that appeared to back their claim: a DNA profile, constructed from semen found in the victim’s body, matched a man who was convicted of raping and strangling another prostitute a few years later.

“It’s over,” Mr. Swift remembers thinking when the DNA match surfaced. But six months later, the exoneration of the four men, who as teenagers confessed during questioning by the police, is still uncertain.

The Cook County state’s attorney has opposed vacating the men’s convictions, arguing that the DNA match alone is not sufficient to cast significant doubt on their guilt. Johnny Douglas, whose DNA matched the profile, was known to frequent prostitutes and could have had consensual sex with the victim before the murder occurred, the prosecutors have argued.

Defense lawyers and some criminal justice experts say that the case illustrates the resistance mounted by a minority of prosecutors around the country in the face of exculpatory DNA evidence. On Wednesday, a Cook Country circuit court judge is expected to rule on whether the convictions of the four men, two of whom are still in prison, should be dismissed.

Hundreds of people in the United States have been cleared by DNA evidence over the last two decades, in some cases after confessing to crimes, often in great detail. Juveniles, researchers have found, are more likely to make false confessions. Four of the five teenagers who were convicted in the brutal 1989 rape of Trisha Meili, known as the Central Park jogger, for example, confessed to the rape but were later exonerated when DNA evidence confirmed another man’s involvement.

For most prosecutors, the presence of post-conviction DNA evidence is enough to prompt action. An examination of 194 DNA exonerations found that 88 percent of the prosecutors joined defense lawyers in moving to vacate the convictions. But in 12 percent of the cases, the prosecutors opposed the motions, and in 4 percent, they did so even after a DNA match to another suspect.

Brandon L. Garrett, a professor of law at the University of Virginia, who studied the exonerations last year, said that many of the cases in which prosecutors dispute the significance of DNA evidence involve defendants who initially confessed to the crimes.

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Joshua Tepfer is Mr. Swift's lawyer.Credit
Sally Ryan for The New York Times

Mr. Tepfer noted that Mr. Douglas, who was in the neighborhood when the body was found and was interviewed by the police at the time, “preyed on at-risk women, on prostitutes, and he engaged in sex and strangled them to death. It’s just an identical situation.”

But Anita Alvarez, the state’s attorney, said a DNA match was not automatically cause for dismissal of the convictions. “DNA evidence in and of itself is not always the ‘silver bullet’ that it is sometimes perceived to be,” Ms. Alvarez said.

Mr. Douglas, she said, who was shot to death in 2008, was “the type of person that was utilizing prostitutes. He didn’t kill every other prostitute he was with.”

“As a prosecutor, I have a duty to the victims in this case,” she said. “I have a duty to look at everything and weigh it.”

Mr. Swift, now 34 and on parole, said his own confession came out of terror and exhaustion after being questioned for hours by the police, who told him, he said, that if he worked with them and signed the confession he could go home but if not, he would go to prison for the rest of his life.

Mr. Swift said that he had not known Nina Glover, the prostitute whose brutalized body was found in a Dumpster behind a building in the South Side’s Englewood neighborhood on Nov. 7, 1994, and that he had been only slightly acquainted with the four other young men who became his co-defendants. Pulled in for questioning four months after the murder, each gave graphic accounts of the rape and murder, but differed on details like the order in which they raped Ms. Glover and how many youths were involved.

Mr. Swift, prosecutors say, also pointed out a spot in a lagoon in nearby Sherman Park, where the police said they had found a shovel and mop handle used to beat Ms. Glover before she was strangled. Mr. Swift said that the police told him that the tools had been tossed into the lagoon and took him there, and that he had just pointed in a general direction at the water. The lagoon, he said, is a dumping ground for trash of all types.

Investigators found semen in Ms. Glover’s vagina, but DNA testing conducted at the time excluded all five defendants and no other forensic evidence connected them to the crime. Still, three of the teenagers — Mr. Swift, Michael Saunders and Harold Richardson — were convicted at trial and received sentences of 30 to 40 years in prison, and the fourth, Vincent Thames, pleaded guilty. The fifth young man, Jerry Fincher, was initially charged but a judge suppressed his confession and he was not prosecuted.

Peter Neufeld, co-director of the Innocence Project and a lawyer for Mr. Saunders, who remains in prison, said that the new DNA evidence pointing to Mr. Douglas, who pleaded guilty to the 1997 rape and murder of a woman with whom he traded cocaine for sex and who was suspected of other violent assaults — was more than enough to raise reasonable doubt in the minds of jurors and meet the standard for a conviction to be vacated.

This month, Ms. Alvarez moved to vacate the convictions in a case involving the 1991 rape and murder of a 14-year old girl. That case also involved five defendants, known as the Dixmoor Five, who confessed to the crime and were excluded by DNA testing at the time.

But the two murders, Ms. Alvarez said, “are not cookie-cutter type cases” and she has no plans to dismiss the convictions in the Englewood case before the judge’s ruling on Wednesday.

Mr. Swift, who is living with his mother and sister in a Chicago suburb, wears an ankle monitor and has to register as a sex offender, a label that he said “hurts me more than the 15 years I did.”

But on Wednesday, he hopes, he might be given a chance to get on with his life.

“It was a tragedy for everybody,” he said. “We’re innocent, but they didn’t want to listen. But they’re going to listen now. I truly believe that. I think they will.”

A version of this article appears in print on November 16, 2011, on page A19 of the New York edition with the headline: When DNA Evidence Suggests ‘Innocent,’ Some Prosecutors Cling to ‘Maybe’. Order Reprints|Today's Paper|Subscribe